America Should Not Only Be A Nation Of Law, But Also Of Equity – OpEd

There is a very common phrase used within the legal profession, that justice should be meted out pursuant to both “law and equity.”

Very few Americans understand the very large difference between these two terms – but their definitions and their corresponding effects on the American system of jurisprudence should not be dismissed.

Unlike in Europe, which has a relatively rigid form of legal jurisprudence based on the Justinian Code, usually called “civil law,” and which is more based on “right and wrong,” “black and white,” with little to no negotiation or lee-way to determine what is legal and what is not, the American system of law, like its fore bearer in British Law, is common law based.

Common law is defined as judicial constructs being based on judicial interpretation of the laws passed by the legislative branch.

This of course leaves room for interpretation based on the moral codes of the modern day, as well as political realities.

This concept can be criticized by some, in that judges have often been termed “activists” if they rule too heavily in one way or another, depending on their political viewpoints and value systems inherent in their own mind.

But still, however, Americans of all stripes are famous for declaring that the country is a “nation of laws,” not people.

But the law is very dry and very black and white, unforgiving of current realities within the American social fabric.

Enter the concept of “equity,” wherein this has been explained as the meting out of justice based on principles of “tit for tat,” or proper justice not necessarily covered by the black letter of the law alone.

Equity allows courts to apply justice based on “natural law” and on their discretion.

Whenever there is a disagreement as to the application of common law, equity is applied.

The concept of equity was developed to temper the strict set of rules or laws which were considered too harsh, draconian, or counterproductive when applied to certain cases, and implements a body of “principles” which advocate “fairness” to follow “natural law.”

This concept of equity has come into play numerous times in our nation’s history, from the right of women and blacks to vote, to the freeing of the slaves, to the creation of the federal civil rights laws, to striking down rampant and open discrimination against gays, Jews and other protected class minorities, and even to such programs as protecting the environment or safety/health issues, which all were previously forbidden to be tampered with, or whose existence was even outlawed by the current “laws of the land.”

So the point is, Americans must not only be guided by the “Rule Of Law,” but also by the “Concept of Equity,” so that they are able to always view problems within American society through the lens of ultimate justice, and not only through the black letter of the sometimes myopic and limiting edicts of the rule of law.

Because simply following the “rule of law” will inevitably lead to cruel, harsh, unjust, stagnant, and ironically enough immoral, unethical, or even illegal judicial decisions which would ultimately have a deleterious and negative overall effect on the soul of the country itself.

After all, it was entirely “legal” when NAZI Germany murdered 6-10 million of its own citizens during World War 2, when Soviet Russia murdered more than 100 million of its own people during the communist expansion, and other countless and horrendous blights on human history.

To that end, America should never lose sight of, or forget, that we are not only a Nation of Laws, but that we should also strive to be a Nation of Equity.

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Rahul Manchanda

Rahul D. Manchanda, Esq, was ranked among Top Attorneys in the United States by Newsweek Magazine in 2012 and 2013. Manchanda worked for one of the largest law firms in Manhattan where he focused on asbestos litigation. At the United Nations Commission on International Trade Law (“UNCITRAL”) in Vienna, Austria, Mr. Manchanda was exposed to international trade law, arbitration, alternative dispute resolution, and comparisons of the American common law with European civil law.

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